How the Belgian Immigration Office is harming NATO’s cybersecurity capabilities

Today, our firm is calling on the Belgian authorities to respect the Withdrawal Agreement and put an end to the practice of the Immigration Office to withdraw temporary protection to British citizens who are in the process of appealing a refusal to grant them a right of residence in Belgium.

Under the Brexit Withdrawal Agreement British citizens who bring an appeal against a refusal to award them a residence permit are allowed to continue living in the country concerned until a final judgment has been handed down.

Article 18(3) of the Withdrawal Agreement could not be more crystal-clear: “pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant”, which include the right to remain and work until the appeal is finally concluded.

Despite this clear obligation, the Belgian authorities have nonetheless been withdrawing the temporary residence document (so-called annexe 35 / bijlage 35) which had been issued to British citizens when they first brought an appeal, in circumstances where their first-level appeal is refused by the Immigration Appeals Council and they subsequently bring a second-level appeal before the Council of State, the Belgian supreme administrative court.

When our firm challenged the Belgian Immigration Office over this, we were informed that, as a matter of Belgian law, appeals to the Council of State do not have any suspensive effect. While this may be correct as a matter of Belgian law, we have pointed that the Withdrawal Agreement explicitly provides otherwise and that this overrides any contrary provision of national law in accordance with the principle of supremacy of EU law.

Our view is fully supported by the European Commission’s guidance note on citizens’ rights under the Withdrawal Agreement (para. 2.6.16) and its FAQs on the rights of UK nationals under the Withdrawal Agreement (Qs 6.4, 7.9 and 7.18).

The Belgian Immigration Office has so far refused to accept this view, saying that their obligation is to provide a first-level right of appeal but nothing further, and that as a consequence their obligation to provide for the suspensive effect of appeals under the Withdrawal Agreement has been extinguished with the dismissal of the first-level appeal.

Given that this practice is predominantly affecting British contractors supporting NATO’s communications agency, this is having a significant detrimental impact on the day-to-day operations of NATO’s IT infrastructure and cybersecurity. These actions also pose a risk to the financial viability of scores of British businesses which act as subcontractors under framework contracts concluded by that agency.

The Belgian authorities must step up and honour their commitments under the Withdrawal Agreement.  What is needed right now, as a short-term fix, is for the Belgian Immigration Office to halt issuing instructions for the cancellation of temporary authorisations (annex 35) and re-instate those which have been cancelled. As a longer-term solution, legislation needs to be tabled to address these gaps in procedural safeguards contained in the Belgian decree on immigration.

Our firm has therefore today addressed letters to the Belgian and British authorities asking for this situation to be resolved as a matter of urgency.

If you are affected by any of these matters, please feel free to contact our firm in full confidence.